Redwoods Community College District * * * OVERRULED BY Pittsburg Unified School District (2022) PERB Decision No. 2833-E * * * (PERB 1047E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COLLEGE 	OF THE 	REDWOODS 	FACULTY
ORGANIZATION,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
)
)
)
) 	Case No. 	SF-CE-1583
PERB Decision No. 	1047
May 26, 	1994
)
)
)
)
)
)
)
Appearances: 	Law Offices 	of Robert J. 	Bezemek by Katherine J.
Thomson, 	Attorney, 	for College of the Redwoods Faculty
Organization; 	School 	and College Legal 	Services by Robert 	J.
Henry and Patrick D. 	Sisneros, 	Attorneys, 	for Redwoods Community
College District.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
Redwoods 	Community College District 	(District) 	to 	the proposed
decision of a PERB administrative 	law judge 	(ALJ). 	The ALJ found
that 	the 	District 	unilaterally and without 	notice 	to 	the 	College
of 	the Redwoods 	Faculty Organization 	(CRFO) 	adopted and
implemented a policy which 	limited 	the 	teaching 	hours 	of
temporary 	instructors 	who were 	also 	classified employees 	of 	the
District in violation of section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the Government 	Code. 	Section 3543.5 	states, 	in pertinent
part:
I~
•
* * * OVERRULED BY Pittsburg Unified School District (2022)
PERB Decision No. 2833 * * *

It 	shall 	be unlawful 	for 	a public 	school
employer 	to 	do 	any 	of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate against 	employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the proposed decision, 	the 	filings 	of 	the parties 	and
the 	hearing 	transcript, 	and hereby 	reverses 	the ALJ's 	proposed
decision 	and 	dismisses 	the 	unfair practice 	charge 	in 	accordance
with 	the 	following 	discussion.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer within 	the meaning
of 	EERA section 	3540.1(k). 	CRFO 	is 	an employee 	organization and
the 	exclusive 	representative 	of 	faculty 	employed by 	the 	District
within the meaning of 	section 	3540.1(d) 	and 	(e).2 Classified
2EERA section 	3540.1 	states, 	in pertinent 	part:
(d) 	"Employee organization" 	means any
organization which 	includes 	employees 	of 	a
public 	school 	employer and which has 	as 	one
of 	its 	primary purposes 	representing 	those
employees 	in 	their 	relations 	with 	that 	public
school 	employer. 	"Employee 	organization"
shall 	also 	include 	any person 	such 	an
organization authorizes 	to 	act 	on 	its 	behalf.
(e) 	"Exclusive 	representative" 	means 	the
employee 	organization 	recognized 	or 	certified
N
	2

employees 	are part 	of 	a bargaining unit 	exclusively 	represented
by the 	California School 	Employees Association 	(CSEA). 	Temporary
instructors 	are part 	of 	the unit 	represented by CRFO. 	The
District 	and CRFO are parties 	to a 	collective bargaining
agreement 	(CBA) 	which was 	in effect 	from September 1, 	1991
through August 31, 	1992.
as 	the 	exclusive 	negotiating 	representative
of 	certificated or 	classified employees 	in an
appropriate unit 	of 	a public 	school 	employer.
(k) 	"Public school 	employer" 	or 	"employer"
means 	the 	governing board 	of 	a 	school
district, 	a school district, 	a county board
of 	education, 	or a county superintendent 	of
schools.
The District produces 	a 	schedule 	of 	classes 	for the upcoming
academic year, 	including both the 	Fall 	and Spring 	semesters,
approximately six months 	before 	the 	beginning of 	that 	academic
year. 	The 	schedule 	of 	classes 	lists 	courses 	the District
anticipates 	it 	will 	offer based on 	its 	experience with 	course
demand, 	the sequential nature of 	certain courses, 	and the
availability of 	resources. 	The District 	employs part-time,
temporary 	instructors, 	many of 	whom have 	served 	in that 	capacity
for several years, 	to instruct 	in some of 	these courses.
Part-time, 	temporary instructors are hired by the District 	on a
semester-by-semester basis. 	Decisions 	on the hiring 	of 	these
instructors 	are made by the District's 	division chairs 	(Science,
Mathematics and Engineering Division, 	for example), 	in
consultation with 	the 	department 	chairs 	within each division.
One 	department 	chair 	testified 	that 	he 	distributed 	the
33

anticipated 	course 	instruction 	load among 	the 	part-time,
temporary 	instructors 	in 	such a way as 	to balance 	the workload as
evenly as 	possible. 	Another department 	chair 	testified 	that 	the
hiring 	of 	temporary 	instructors 	had previously been 	restricted by
a District 	policy which 	limited 	a 	temporary 	instructor 	to
teaching 	no more 	than seven 	instructional 	days 	for an 	entire
year. 	In other words, 	if 	a temporary instructor was hired to
teach 	classes 	five 	days 	one 	semester, 	that 	instructor 	could be
hired 	to 	teach no more 	than two days 	the next 	semester.
Some 	courses 	scheduled to be 	taught by part-time, 	temporary
instructors 	have been cancelled by 	the District 	at 	the beginning
of 	a 	semester based 	on 	financial 	considerations 	including 	the
level 	of 	enrollment 	of any particular 	class.
Prior to the Fall 	semester of 	1992, 	the District hired full-
and part-time 	classified 	employees 	on 	a 	semester-by-semester
basis 	to serve as part-time, 	temporary instructors, 	subject 	to
the 	limitations 	contained 	in 	the 	Education 	Code 	and 	the 	CBA.
Education Code 	section 87482.5 	states, 	in pertinent part:
Notwithstanding 	any 	other provision 	of 	law,
any person who 	is 	employed 	to 	teach adult 	or
community 	college 	classes 	for not more 	than
60 percent 	of 	the hours per week considered a
full-time 	assignment 	for 	regular 	employees
having 	comparable 	duties 	shall 	be 	classified
as a temporary employee. 	. 	. 	.
The 	CBA defines 	a 	full-time 	teaching 	load 	in the District 	as 	22.5
teaching 	load units 	(TLU) 	per week. 	Each classroom instructional
hour per week generally equals 	1.5 	TLUs, 	with the 	exception of
laboratory class hours which equal 	1 TLU. 	The CBA states 	that
44

part-time 	instructors 	in the District will 	not 	teach more 	than 	60
percent 	of 	a 	full-time 	teaching load, 	or 13.5 	TLUs per semester.
The parties' 	CBA also 	includes a provision 	(Article 	III,
Section 	3.10) 	that 	the District 	and CRFO will 	negotiate 	to
designate 	certain positions 	as 	"Permanent 	Part-Time." 	The 	stated
purpose 	of 	the provision 	is 	to provide permanency of 	employment
to 	the part-time 	faculty who 	occupy 	the 	designated positions.
The provision also 	states 	that 	it 	"is 	not 	intended 	to grant 	any
rights 	to 	temporary 	certificated employees 	as 	that 	term is 	used
in 	the 	California Education Code" 	unless 	they are provided
permanency of 	employment 	under 	the 	terms 	of 	the provision.
In late 	1991, 	the District became aware of a case 	involving
the Monterey Community College District, 	which the District
concluded 	subjected 	its 	faculty 	to 	the 	overtime provisions 	of 	the
U.S. 	Fair Labor Standards Act 	(FLSA). 	The District concluded
that 	FLSA required 	that part-time, 	temporary instructors 	whose
combined work hours 	as 	instructors 	and as 	classified 	employees 	of
the District 	exceeded the 	equivalent 	of 	40 	hours per week, 	had to
be 	compensated at premium, 	overtime 	rates 	of pay 	for those hours
in excess 	of 	40 	hours per week. 	Concerned about 	the additional
cost 	involved, 	as well as 	the potential 	inequity of paying
certain part-time, 	temporary instructors 	(those who were 	also
classified employees) 	at 	a higher 	rate 	than other temporary
instructors, 	the District 	considered several 	options. 	Among 	them
were paying the premium, 	overtime pay to some part-time,
temporary 	instructors; 	eliminating 	the practice 	of 	employing
un
5

classified employees as part-time, 	temporary instructors; 	and
limiting 	the 	instruction hours 	for which 	classified 	employees
could be 	hired 	to avoid 	exceeding 	the 	equivalent 	of 	a 	full-time
workload.
Cathy Dellabalma 	(Dellabalma), 	Director of 	Personal 	Services
for the District, 	discussed the matter and the 	options 	the
District 	was 	considering with 	CSEA. 	CSEA expressed no 	concern
with 	the 	District's 	options 	as 	they affected 	classified
employees.
Dellabalma also discussed the 	issue with Mike Wells 	(Wells),
CRFO President, 	in a December 1991 	telephone conversation.3
Dellabalma believed 	CRFO 	would 	share 	the 	District's 	concern 	over
the potential 	inequity of paying some part-time, 	temporary
instructors 	(those who were also 	classified employees) 	at 	a
higher rate 	than others performing 	comparable duties. 	Wells,
however, 	indicated 	that 	CRFO would not 	be 	concerned 	since 	he
believed 	the part-time, 	temporary 	instructors were generally
underpaid. 	Dellabalma did not 	indicate 	to Wells which option the
District 	was 	likely 	to pursue.
After discussion of 	the options by the District, 	Dellabalma
issued a memo 	to 	the District's management 	and 	supervisory
personnel 	on February 18, 	1992. 	The memo explained the potential
impact 	of 	FLSA on part-time, 	temporary instructors 	who also
served as 	classified employees 	of 	the District. 	The memo
3Wells 	testified 	that 	he 	had no 	recollection 	of 	the
conversation.
66

announced that beginning with the 	Fall 	1992 	semester, 	the
combination of 	classified employment 	hours 	and 	temporary-
instructor hours 	could not 	be 	allowed 	to 	exceed a 	full-time
workload 	for District 	employees. 	The memo 	indicated how 	the work
hours 	of 	classified employees 	and the 	TLUs 	of 	those 	employees
hired as 	part-time, 	temporary 	instructors would be 	combined 	to
determine 	if 	a 	full-time workload had been exceeded. 	The memo
indicated 	that 	"No 	full-time 	classified 	employee 	would be 	able 	to
teach, 	unless 	and until 	their 	regular assignment 	has 	been
reduced."
Marilyn Renner 	(Renner), 	a permanent, 	half-time classified
employee who also 	taught 	science as a part-time, 	temporary
instructor, 	discussed her 	concerns 	regarding 	the District's
policy with 	CRFO and Wells. 	Renner met 	with Dellabalma 	on
May 11, 	1992, 	to discuss the new policy. 	Dellabalma indicated
that 	the District 	could not 	handle 	the 	financial 	obligation 	of
paying 	some 	of 	its 	temporary 	instructors 	at 	premium overtime
rates.
On May 29, 	1992, 	Wells wrote the District asking that 	it
reconsider the policy. 	On July 30, 	1992, 	Wells wrote to
Dellabalma 	arguing 	that 	the 	policy 	should be modified 	or
rescinded. 	Wells 	suggested 	several 	options 	that 	could allow
classified employees 	to be hired 	for more part-time, 	temporary
instruction hours 	than 	through 	the 	approach adopted by 	the
District. 	He also demanded a modification of 	the policy by
August 	6 	or CRFO would 	file 	"a 	Fair Labor Practices violation
7
7

suit." 	Dellabalma 	responded on August 	6 	that 	the 	deadline 	given
by 	CRFO provided 	inadequate 	time 	for 	the District 	to 	consult 	its
legal 	counsel.
On November 12, 	Renner, 	by then a representative of 	CRFO,
met 	with Dellabalma 	again 	seeking modification 	of 	the policy.
Dellabalma 	indicated 	she 	would 	consult 	with 	other District
representatives, 	and subsequently advised Renner 	that 	the
District 	would not 	modify 	the 	policy.
Prior 	to 	the 	change 	in policy Renner taught 	up to 	13.5 	TLUs
per semester of biology and plant 	science 	courses. 	After
adoption of the new policy, 	Renner, 	a permanent, 	half-time
classified employee, 	could no longer teach 13.5 	TLUs.
Consequently, 	the District 	hired another part-time, 	temporary
instructor 	to 	teach a 	class 	Renner would have been hired 	to 	teach
if 	not 	for adoption of 	the new policy.
Judith Hinman 	(Hinman) 	is a permanent, 	half-time classified
employee 	of 	the District. 	Prior to the 	change 	in policy and
prior to 	the beginning of 	the 	Fall 	1992 	semester, 	Hinman had been
scheduled to 	teach 	12.5 	TLUs 	in the 	Fall 	1992 	semester and 	13
TLUs 	in the 	Spring 	semester. 	After the policy was 	adopted,
Hinman actually taught 	10.5 	TLUs 	in both the 	Fall 	1992 	and Spring
1993 	semesters. 	Other 	instructors were hired to 	teach the
classes 	Hinman would have been hired 	to 	teach 	if 	not 	for adoption
of 	the new policy.
David Tralle 	(Tralle) 	is 	a 	full-time 	classified employee 	of
the District who 	served as 	a part-time, 	temporary 	instructor for
8

six years prior 	to 	the 	change 	in policy. 	Following 	the 	change
Tralle was 	unable 	to 	reduce 	his 	classified work hours 	to
accommodate any teaching assignment and, 	therefore, 	did not 	teach
in the 	Fall 	1992 	semester. 	Tralle assisted the District 	in
selecting another 	instructor 	to 	teach 	the 	courses 	Tralle would
have been hired to 	teach 	if 	not 	for the adoption of 	the new
policy.
Kerry Mayer 	(Mayer) 	is 	a 	full-time 	classified employee 	of
the District. 	Prior to 	the 	change 	in policy and prior to 	the
beginning of 	the 	Fall 	1992 	semester, 	Mayer had been scheduled to
teach two public 	speaking 	classes. 	Following the 	change, 	Mayer
was 	unable 	to 	reduce 	her 	classified work hours 	to 	accommodate 	any
teaching assignment and, 	therefore, 	did not 	teach 	in the 	Fall
1992 	semester. 	Other 	instructors were hired to 	teach the 	two
classes Mayer would have been hired 	to 	teach 	if 	not 	for 	the
adoption 	of 	the 	new policy.
CRFO 	filed its unfair practice 	charge on August 	18, 	1992.
After investigation of the charge, 	on October 30, 	1992, 	the PERB
general 	counsel 	issued a 	complaint 	alleging 	that 	the District
violated EERA section 3543.5(a), 	(b) 	and 	(c) 	when it adopted its
policy with regard 	to 	the 	hiring of part-time, 	temporary
instructors 	who were 	classified 	employees 	of 	the District 	without
giving notice 	to 	and providing 	CRFO 	the 	opportunity 	to 	negotiate
concerning 	the 	new policy.
The District 	filed 	its 	answer 	to 	the 	complaint 	on
9
9

November 20, 	1992, 	denying any violation of EERA asserting, 	among
other 	things, 	that 	CRFO had 	failed 	to allege 	facts 	sufficient 	to
demonstrate violations of EERA section 3543.5(a), 	(b) 	and 	(c),
and 	that 	CRFO was 	"attempting 	to 	claim a 	right 	to negotiate 	on a
hiring 	decision."
A 	PERB-conducted 	settlement 	conference 	did 	not 	result 	in
settlement, 	and a 	formal 	hearing was 	conducted by a 	PERB ALJ on
March 29, 	1993. 	In his proposed decision, 	the ALJ found that 	the
District's 	policy 	constituted a 	limitation 	on 	the 	hours 	certain
part-time, 	temporary instructors 	could teach. 	Since 	the 	subject
of 	work hours 	is 	clearly within EERA's 	scope 	of 	representation,
and part-time, 	temporary instructors are 	entitled to 	the 	rights
guaranteed by EERA, 	the ALJ 	concluded 	that 	the District 	had 	the
obligation 	to give notice 	to CRFO and offer 	it 	the 	opportunity to
negotiate 	the 	decision to 	limit work hours 	for those 	instructors.
Finding 	that 	the 	District 	had 	failed 	to 	fulfill 	this 	obligation,
the ALJ concluded that 	it 	had violated EERA section 	3543.5(a),
(b) 	and 	(c) 	after rejecting the various arguments and defenses
raised by 	the 	District.
POSITIONS 	OF THE 	PARTIES
CRFO 	alleges 	that 	the 	District 	unilaterally 	adopted 	a policy
limiting 	the 	teaching hours 	available 	to part-time, 	temporary
instructors who are 	classified employees 	of 	the District.
The District 	responds 	that 	CRFO 	is 	seeking 	to negotiate 	a
hiring decision which 	is 	outside 	of 	the 	scope 	of 	representation.
The District 	argues 	that 	the 	instructors 	in question are
10

temporary 	employees 	within 	the 	meaning 	of 	Education Code 	section
87482.5,4 and that 	Education Code 	section 	87665 	provides 	that:
The 	governing board may 	terminate 	the
employment 	of 	a 	temporary employee at 	its
discretion at 	the 	end of 	a day or week,
whichever 	is appropriate. 	The decision to
terminate 	the 	employment 	is 	not 	subject 	to
judicial 	review except 	as 	to 	the 	time 	of
termination.
Since 	temporary 	employees 	have 	no 	continuing 	rights 	to
employment, 	the District 	argues 	that 	it 	is not 	required to
negotiate 	over 	its 	hiring 	decisions 	affecting part-time,
temporary 	instructors 	in 	future 	semesters. 	The District 	further
asserts 	that part-time, 	temporary instructors 	have 	the 	status 	of
applicants 	for 	teaching positions 	in 	subsequent 	semesters 	for
which they have not yet been hired and, 	therefore, 	have no
standing 	to 	allege 	a violation 	of 	EERA rights 	associated with
employment 	for which 	they have 	not 	yet 	been hired.
The District also offers 	other arguments, 	including: 	that
CRFO 	is 	attempting 	to 	represent 	both 	classified and 	certificated
employees 	of 	the District 	in violation of 	EERA section
3545(b)(3); 	that CRFO has alleged conduct 	that arguably
represents 	contract 	violations 	beyond 	PERB's 	jurisdiction under
EERA section 3541.5(b) 	because at most 	the District's 	conduct 	is
an 	isolated 	contract 	breach; 	that 	CRFO 	failed to 	request
negotiations 	over the District's action; 	and, 	for the 	first 	time
in its post-hearing briefs, 	that 	CRFO has waived its 	right 	to
4Ante. 	page 4.
11

negotiate 	regarding 	the 	subject 	of 	its 	unfair practice 	charge by
the 	terms 	of 	the CBA in effect between the parties.
CRFO disputes 	the District's 	assertion that 	the 	case
involves 	the District's decisions 	to rehire or not 	rehire. 	CRFO
reiterates 	that 	the 	instant 	case 	involves 	"allowable hours 	once
hired." 	CRFO argues 	that 	the Board's 	finding 	in The Regents 	of
The University of 	California 	(1983) 	PERB Decision 359-H
(University of California) 	is analogous 	to the 	instant 	case. 	The
Board held 	in 	that 	case 	that 	the University had violated 	the
Higher Education Employer-Employee Relations Act 	(HEERA) 	when it
unilaterally altered 	its 	policy governing 	the 	number 	of 	years 	for
which 	full-time 	lecturers 	could be 	rehired 	on 	an annual 	basis
because 	it 	affected a present 	term and 	condition of 	employment.
CRFO also asserts 	that 	it 	is 	representing 	only part-time,
temporary 	faculty members 	in 	its unfair practice 	charge; 	that 	the
complained of 	conduct 	is 	not 	a mere 	isolated 	contract 	breach and
is, 	therefore, 	properly within PERB's 	jurisdiction 	(Grant Joint
Union High School District 	(1982) 	PERB Decision No. 	196 	(Grant
Joint UHSD)); 	and that CRFO did not 	fail 	to request negotiations
over the District's 	action. 	CRFO also 	contends 	that 	the
District's 	offering 	of 	a 	contractual 	waiver defense 	is 	untimely
citing Beverly Hills Unified School 	District 	(1990) 	PERB Decision
No. 	789 	in which the Board 	refused to 	consider an affirmative
waiver defense 	raised 	late 	in 	the 	formal 	hearing 	in 	order 	to
assure a 	fair litigation process.
12

DISCUSSION
EERA section 3543.5(c) 	requires 	an employer 	to meet 	and
negotiate 	in good 	faith with an exclusive 	representative. 	A
preimpasse 	unilateral 	change 	in 	an 	established policy 	affecting 	a
matter within the 	scope 	of 	representation 	is 	a per se 	refusal 	to
negotiate. 	(Grant Joint UHSD, 	supra. 	PERB Decision No. 	196;
Pajaro Valley Unified School District 	(1978) 	PERB Decision No. 	51
(Pajaro Valley USD); 	San Mateo County Community College District
(1979) 	PERB Decision No. 	94; 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736
[50 LRRM 2177] .)
To 	establish a unilateral 	change, 	the 	charging party must
show that: 	(1) 	the employer breached or altered the parties'
written agreement 	or established past practice; 	(2) 	such action
was 	taken without 	giving 	the 	exclusive 	representative 	notice 	or
an opportunity to bargain over the 	change; 	(3) 	the 	change 	is not
merely an 	isolated breach of 	the 	contract, 	but 	amounts 	to a
change of 	policy 	(i.e., 	has 	a generalized effect 	or 	continuing
impact upon bargaining unit members' 	terms and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant 	Joint UHSD.)
An employer makes no unilateral 	change, 	however, 	where an
action the employer takes does not 	alter the status 	quo. 	"[T]he
'status 	quo' 	against which an employer's 	conduct 	is 	evaluated
must 	take 	into account 	the 	regular and consistent past patterns
of 	changes 	in the 	conditions 	of 	employment." 	(Pajaro Valley
USD.)
13

A review of 	the 	CBA in effect 	between 	the parties 	reveals
that 	they have agreed that part-time, 	temporary 	instructors 	will
not be assigned 	to 	teach 	courses 	in excess 	of 	60 	percent 	of 	the
22.5 	TLUs per 	semester 	(13.5 	TLUs) 	which 	constitute a 	full-time
teaching 	load 	(Article III, Section 3.9.1). 	While 	this provision
sets 	a maximum TLU level 	for which part-time, 	temporary
instructors will 	be hired, 	it does 	not 	establish that 	the parties
have 	agreed 	those 	instructors 	will 	be 	hired 	for any minimum
level, 	or 	for any 	continuing 	level 	from semester to 	semester.5
Also, 	the 	CBA contains a provision 	in which the parties 	have
agreed 	to negotiate 	to determine which part-time positions 	would
be designated as 	"Permanent 	Part-Time" 	(Article 	III,
Section 3.10.1). 	The intent of 	the provision is 	"to provide
permanency of 	employment" 	to 	the 	instructors who 	fill 	those
positions. 	However, 	the part-time, 	temporary instructors
affected by 	the 	District's 	new policy had not 	been provided
permanency 	of 	employment 	in accordance with 	this 	provision.
Therefore, 	we 	conclude that 	the parties' 	CBA does not
contain provisions 	governing 	the 	conduct 	complained 	of 	by 	CRFO
which were breached 	or altered by 	the District 	when 	it 	adopted a
policy affecting 	the hiring of part-time, 	temporary 	instructors
in future semesters.
5CRFO's 	statement 	in 	its 	post-hearing 	reply brief 	that 	it
seeks 	"to preserve 	the right 	that any part-time, 	temporary
faculty member 	[has] 	to 	60% 	of 	the 	load of a full-time 	faculty
member" 	fails 	to cite the origin of 	this alleged 	"right."
14

We 	now assess 	whether the District 	altered 	its 	established
past practice when 	it adopted this policy. 	Initially, 	the Board
notes 	that 	the parties 	stipulated at 	the 	outset 	of 	the hearing
that part-time, 	temporary instructors 	are hired 	"on a semester-
by-semester basis." 	Also, 	the 	record indicates 	that 	the District
produces 	a 	schedule 	of 	classes 	for 	the upcoming academic 	year
approximately 	six months 	before 	the beginning 	of 	the 	year which
lists 	the 	courses 	the District 	anticipated 	it would be 	offering.
The District 	schedules 	instructors who 	it 	anticipates 	will 	be
teaching 	those 	courses. 	While 	these actions 	indicate 	the
potential 	assignments of 	the District's part-time, 	temporary
instructors, 	it 	is 	clear that 	they are hired semester by semester
based on a variety of academic, 	management 	and 	financial
considerations. 	Among those 	considerations 	are 	the 	sequential
nature of 	certain courses and series 	of 	courses, 	the 	level 	of
enrollment 	and other 	cost-related 	factors 	of 	certain courses, 	and
the 	desire 	to 	evenly distribute 	the 	instructional 	workload among
the part-time, 	temporary 	instructors who are hired. 	These
considerations 	have prompted 	the District 	to 	cancel 	scheduled
courses 	at 	or near the beginning of a semester, 	thereby
eliminating the need to hire part-time, 	temporary instructors 	to
teach 	them. 	We 	conclude 	that 	the District's 	established practice
is 	to make 	decisions 	involving 	the 	semester-by-semester hiring 	of
part-time, 	temporary instructors based on its 	academic,
management 	and 	financial 	considerations.
15

In this 	case, 	the District 	applied these 	considerations 	in
adopting 	a policy affecting 	the hiring of part-time, 	temporary
instructors 	in 	future 	semesters. 	The policy was 	designed 	to
avoid what 	the District 	perceived as 	the 	additional 	cost 	and
potential 	inequity of hiring 	certain part-time, 	temporary
instructors, 	those who were also classified employees 	of 	the
District, 	at 	a higher salary than others. 	The Board concludes
that 	the 	District's 	action was 	consistent 	with 	its 	established
past practice of applying academic, 	management and 	financial
considerations 	in 	its 	semester-by-semester hiring 	decisions
involving part-time, 	temporary instructors.
CRFO argues 	that a policy affecting part-time, 	temporary
instructors 	"which limits 	their hours 	once 	hired 	is 	not 	a policy
regarding hiring, 	but a policy regarding hours." 	In support 	of
this 	argument, 	CRFO 	cites University of 	California asserting 	that
the 	Board 	found 	in 	that 	case 	that 	a policy 	reducing 	the 	number of
years 	full-time 	lecturers 	could be 	annually 	rehired was 	within
the 	scope 	of 	representation because 	it 	affected a present 	term
and 	condition 	of 	employment.
CRFO's 	reliance 	on University of 	California 	is misplaced.
In 	that 	case, 	the University unilaterally changed provisions 	of
its 	formal Academic 	Personnel Manual 	and 	reduced 	the 	time period
over which lecturers, 	who were full-time employees, 	were
considered for 	"security of 	employment" 	designation, 	a status
akin to 	tenure. 	The Board determined that 	the University's
unilateral 	action violated HEERA because 	it 	changed 	the
16

conditions 	and expectations 	surrounding 	the 	renewal 	of 	contracts
and potential 	advancement 	to permanent, 	continuing employment
status 	for 	full-time University 	lecturers.
The 	instant 	case 	is 	clearly distinguishable. 	Rather 	than
full-time lecturers 	eligible 	for permanency of 	employment, 	this
case 	involves 	part-time, 	temporary 	instructors 	who have no 	rights
to 	continuing 	employment 	by 	terms 	of 	the 	CBA and 	the 	Education
Code. 	Also, 	the Board specifically noted in University of
California 	that 	the University's 	hiring 	decisions 	with 	regard 	to
full-time 	lecturers 	were 	influenced by 	"class 	or program changes,
poor performance 	or financial 	exigency." 	However, 	the Board
concluded 	that 	the 	change 	in 	the policy 	in question 	in 	that 	case
was not based on those considerations. 	In this 	case, 	the
District's 	change 	in policy was 	based precisely on 	these 	types 	of
considerations 	and was 	consistent 	with 	the 	District's 	established
practice.
Furthermore, 	CRFO's 	assertion 	that 	the District 	adopted a
policy limiting 	the hours 	of part-time, 	temporary 	instructors
once hired 	is 	not persuasive. 	The District 	applied 	financial 	and
management 	considerations 	and adopted a hiring policy,-
specifically, 	a policy with regard to 	the hiring of 	part-time,
temporary instructors 	in 	future 	semesters. 	The Board has 	long
held that 	the 	organization and distribution of work, 	including
decisions 	involving 	the hiring and laying off 	of 	employees, 	are
matters 	of 	fundamental management 	concern which must 	be 	left 	to
17

the 	employer's 	prerogative. 	(Newman-Crows 	Landing Unified School
District 	(1982) 	PERB Decision No. 	223; 	see also Mt. 	Diablo
Unified School District 	(1983) 	PERB Decision No. 	373.)
In 	sum, 	the District's 	adoption of 	a policy affecting 	the
hiring of part-time, 	temporary 	instructors 	in 	future 	semesters
was 	consistent with its 	established past practice, 	and
represented an 	exercise 	of 	its 	management 	prerogative 	concerning
hiring, 	organization and assignment of work. 	Therefore, 	the
Board 	finds 	that 	the District 	did not 	violate 	EERA
section 3543.5(a), 	(b) 	and 	(c) 	when it adopted that policy
without 	negotiating with 	the 	College 	of 	Redwoods 	Faculty
Association. 	Accordingly, 	it 	is unnecessary to consider the
alternative 	arguments 	raised by 	the District 	appeal.6
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	SF-CE-1583 	is hereby DISMISSED.
Chair Blair joined 	in this Decision.
Member Garcia's 	dissent begins 	on page 	19.
6PERB's 	jurisdiction in this 	case 	is 	clear. 	In Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646 	and
Los Angeles Unified School District 	(1990) 	PERB Decision No. 	860,
the Board held that 	EERA section 3541.5(a)(2) 	denies 	PERB
jurisdiction 	if 	the 	complained of 	conduct 	is 	arguably prohibited
by provisions 	of 	the parties' 	CBA, 	and the CBA provides 	for a
grievance procedure 	covering 	the 	issue 	and 	culminating 	in binding
arbitration. 	These conditions are not met 	in this 	case, 	and
neither party asserts 	that 	they are. 	The 	CBA provisions 	cited 	in
Member Garcia's 	dissent 	do not 	arguably prohibit 	the 	conduct
complained of 	in this 	case; 	CRFO does 	not have 	standing to 	file a
grievance 	in 	its 	own name under 	the 	CBA grievance procedure 	(see
Inglewood Unified School District 	(1990) 	PERB Decision No. 	821);
and 	the 	grievance procedure 	does 	not 	culminate 	in binding
arbitration. 	For any and all 	of 	these reasons, 	the 	case may not
be 	deferred and 	is 	properly before 	the 	Board.
18

GARCIA, 	Member, 	dissenting: 	The Public Employment Relations
Board 	(PERB 	or Board) 	does 	not 	have authority to 	issue a decision
in 	this 	case because 	the 	dispute 	is 	subject 	to an unexercised
grievance 	procedure under 	the 	agreement 	between 	the parties.
Therefore, 	I would reverse 	the administrative 	law judge's 	(ALJ)
decision, 	remand the 	case 	for lack of 	PERB jurisdiction, 	and
order 	the 	case 	to be placed 	in abeyance 	pending 	exhaustion 	of 	the
contractual 	grievance procedure.
DISCUSSION
Jurisdiction
PERB 	does 	not 	have 	jurisdiction 	over matters 	involving
conduct prohibited by a provision of 	the parties' 	collective
bargaining agreement 	(CBA) 	until 	the 	grievance machinery of 	the
agreement, 	if 	it exists and covers 	the matter at issue, 	has been
exhausted 	either by 	settlement 	or by binding arbitration.1 As 	a
matter of 	initial 	inquiry in this 	case, 	therefore, 	the Board must
determine whether the 	College 	of 	the Redwoods 	Faculty
Organization's 	(CRFO) 	charge 	of 	an unfair labor practice 	through
a unilateral 	change 	to a negotiable 	term or 	condition of
employment 	is 	based on 	facts 	or 	conduct 	which would be 	reviewed
under a mutually agreed upon grievance process 	in 	the parties'
contract. 	We 	considered 	the 	entire 	record 	in accord with 	PERB
1Educational Employment Relations Act 	(EERA) 	section
3541.5(a)(2); 	PERB Regulation 32620(b)(5); 	Lake Elsinore School
District 	(1987) 	PERB Decision No. 	646.
19

Regulation 	32320 	and 	found 	that 	the 	grievance 	process 	covers 	the
matter at 	issue.2
Looking 	at 	the 	CBA 	introduced 	into 	the 	record, 	we 	find 	that
in 	totality 	the 	contract 	provisions 	contained 	in Article 	III,
section 	3.10.1 	(wages 	and working 	conditions 	for permanent 	part-
time positions);3 Article X, 	sections 	10.1 	through 	10.6
2PERB Regulation 3232 0 	reads, 	in pertinent part:
(a) 	The Board 	itself may:
(1) 	Issue 	a decision based upon 	the 	record
of hearing, 	or
(2) 	Affirm, 	modify or reverse 	the proposed
decision, 	order 	the 	record 	reopened 	for
the 	taking 	of 	further evidence, 	or 	take
such 	other 	action 	as 	it 	considers
proper. 	[Emphasis added.]
3Section 	3.10 	of 	the 	CBA reads, 	in pertinent 	part:
Permanent 	part-time positions: 	The 	district
and 	CRFO 	will 	negotiate 	to 	determine 	which
positions 	will 	be 	designated 	as 	Permanent
Part-Time.
Purpose: 	The purpose 	of 	this 	policy 	is 	to
provide 	permanency 	of 	employment 	after
successful 	completion 	of 	a 	probationary
period 	to 	part-time 	faculty 	in 	selected
positions 	designated 	by 	the 	district.
The 	permanency 	given 	to 	certain 	part-time
faculty pursuant 	to 	this 	policy 	is 	intended
to 	operate 	independently 	of 	the
classification 	scheme 	provided 	in 	State 	law
for 	those 	faculty who 	are 	either 	contract 	or
regular 	certificated 	employees, 	and 	is 	not
intended 	to 	grant 	any 	rights 	to 	temporary
certificated 	employees 	as 	that 	term 	is 	used
in 	the 	California 	Education 	Code 	except 	to
the 	extent 	that 	rights 	are 	granted 	to 	certain
temporary 	employees 	by 	this 	policy.
20

(grievance process);4 Article XVI, 	section 16.1 	(administrative
remedies);5 Article XVII, 	section 17.1 	(duty to consult);6 and
Article XVIII, 	section 18.1 	(waiver)7 cover the subject matter
and 	raise 	defenses 	that 	should be 	considered 	in 	the 	dispute.
The CBA defines 	"grievance" 	as:
A 	formal 	written allegation by a 	grievant 	that 	the
grievant 	has 	been adversely affected by 	a violation 	of
4Article X 	of 	the 	CBA provides 	for a 	three-step 	grievance
process with levels 	of 	review and preserves 	the grievants' 	rights
to pursue 	other 	relief 	in 	the 	event 	of 	dissatisfaction with a
final 	decision.
5Section 16.1 	of 	the CBA reads:
CRFO agrees 	to 	exhaust 	any and all
administrative 	remedies 	before 	filing 	any
unfair labor practice 	charge, 	filing a
complaint 	in a court, 	or seeking any outside
assistance 	in 	resolving any 	type 	of 	labor
dispute.
6Section 17.1 	of 	the CBA reads:
The 	district agrees 	to 	consult 	with CRFO on
wages, 	hours of employment, 	health and
welfare benefits, 	leave and transfer
policies, 	safety conditions of employment,
class 	size, 	employee evaluation procedures
and 	grievance 	processing procedures.
7Section 18.1 	of 	the CBA reads:
During 	the 	term of 	this 	agreement 	both
parties 	waive 	and 	relinquish 	the 	right 	to
meet 	and negotiate 	and agree 	that 	neither
shall 	be 	obligated 	to meet 	and negotiate with
the 	other 	respecting any 	subject 	or matter,
whether 	referred 	to 	or 	covered 	in 	this
agreement 	or not, 	even though such subjects
and matters may not 	have been within 	the
knowledge 	or 	contemplation of 	either 	or both
the 	district 	or CRFO at 	the 	time 	they met 	and
negotiated 	on and 	executed 	this 	agreement,
and 	even 	though 	such 	subjects 	or matters may
have 	been proposed and 	later withdrawn.
21

a 	specific article, 	section or provision of 	this
agreement.8
"Grievant" 	is 	defined in the CBA as 	"any member of 	the
bargaining unit 	covered by 	the 	terms 	of 	this Agreement."9 The
CBA further provides 	that 	a 	grievant 	" . . . 	may be 	represented by
a designee 	of 	CRFO at any step of 	this 	grievance procedure."10
Both parties, 	through their post-hearing briefs, 	acknowledge
that 	the 	CBA covers 	the 	subject matter of 	this 	dispute.11 The
facts 	and 	circumstances 	which 	constitute 	the basis 	for CRFO's
unfair 	labor practice 	charge 	are 	substantially 	the 	same 	as 	those
which would be 	reviewed under 	the 	grievance 	procedure 	agreed 	to
in 	the 	CBA.12 Potential 	defenses 	against 	alleged grievances 	are
contained 	in 	the 	CBA13 and would have been 	reviewed 	in 	the
grievance process.
8CBA, 	Article X, 	section 10.2.1.
9CBA, 	Article X, 	section 10.2.2.
10CBA, 	Article X, 	section 10.4.
11For example, 	in its Opening Brief at pages 	7-8, 	CRFO relies
on Article 	III, 	section 	3.9 	of 	the 	CBA 	(dealing with limit 	on
part-time 	faculty workload) 	as 	the basis 	for its 	claim that 	the
Redwoods 	Community College District 	(District) 	had made a
unilateral 	change 	to a mandatory 	subject 	of 	bargaining.
Similarly, 	in its Opening Brief at pages 	7-8, 	the District 	relies
on various 	contract provisions 	(Article XVII, 	section 17.1 and
Article XVIII, 	section 18.1) 	as 	support 	for its argument 	that 	the
CRFO had waived any 	right 	it may have 	had 	to negotiate 	regarding
teaching 	time.
12See CBA, 	Article X.
13CBA, 	Article XVIII; Article XVII; 	and Article III, 	section
3.10.1.
22

We must 	inquire whether 	the 	grievance machinery has 	been
exhausted either by settlement 	or binding arbitration. 	The
record 	indicates 	that 	the parties 	did not 	initiate 	the 	grievance
process 	to 	review the 	dispute 	and 	thus 	did not 	exhaust 	that
remedy.
Whenever PERB 	review reveals 	that 	the 	facts, 	contractual
defenses 	or 	conduct 	which are 	the basis 	of 	an alleged unfair
labor practice 	generally 	coincide 	with 	those which would be
reviewed under 	the 	grievance machinery of 	the 	contract, 	PERB
jurisdiction 	is 	suspended.14 The 	statute 	compels 	the parties 	to
use 	their negotiated grievance machinery to 	try 	to 	settle 	the
dispute. 	Deferral 	may occur at 	any time 	in the 	PERB process 	and
PERB 	jurisdiction 	re-attaches 	only 	in 	cases 	of 	futility or 	to
review settlements 	or awards 	for 	repugnancy to 	the 	statute.15
In conclusion, 	under the particular set 	of 	facts 	in this
case, 	EERA section 	3541.5 	and 	PERB precedent 	require 	deferral
14See, 	e.g., 	Conejo Valley Unified School District 	(1984)
PERB Decision No. 	376 	(overruled on other grounds 	in Lake
Elsinore, supra. 	PERB Decision No. 	646, p. 31, 	fn. 13), ordering- -.
deferral 	because:
. 	. 	. 	the charge 	. 	. 	. 	raises a substantial
question 	of 	contract 	interpretation which
lies at the center of the parties' 	dispute.
The parties 	have 	previously agreed that 	such
matters may be 	resolved by a process 	of
binding arbitration. 	. 	. 	. 	Under these
circumstances 	EERA 	subsection 	3541.5(a)(2)
prohibits 	this 	agency 	from issuing a
complaint. 	[P. 	9.]
See also Roy Robinson Chevrolet 	(1977) 	228 NLRB 	828
[94 	LRRM 1474].
15EERA section 	3541.5.
23

and to 	the 	extent 	that prior cases 	imply 	that 	deferral 	only
occurs when the grievance process 	results 	in binding arbitration,
I 	would 	overrule 	them.16
CONCLUSION
Based upon EERA, 	pertinent 	case 	law, 	PERB 	regulations 	and
the entire 	record in this 	case, 	I would reverse 	the ALJ's
decision, 	remand the 	case 	for lack of 	PERB jurisdiction, 	and
order 	it 	to be 	placed 	in abeyance 	pending 	exhaustion 	of 	the
grievance process.
16Member Caffrey's 	footnote 	6 	on page 	18, 	added after the
original 	opinion was 	signed and ready 	for 	issuance, 	is 	an
afterthought 	to my original 	dissent, 	designed to bootstrap PERB
jurisdiction over 	this 	case by 	ignoring 	the 	clear 	language 	of 	the
statute 	(EERA sec. 	3541.5(a)(2)) 	and manufacturing a subjective
test 	of 	contract 	interpretation 	that 	was 	not 	adopted 	in Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646.
Any person could review the parties' 	contract 	in this 	case
and take a position 	that 	it 	"arguably prohibits" 	or 	"does 	not
arguably prohibit" 	the conduct 	complained of, 	depending on the
desired result. 	Both parties 	acknowledge 	that 	the 	contract
covers 	the dispute. 	(See 	fn. 	11 to my dissent.) 	My concurrence
in State 	Center Community College District 	(1994) 	PERB Order No.
Ad-255 	explains 	the partiality of 	the 	"arguably prohibited" 	test.
The 	question of 	standing 	to 	file a grievance 	is 	to be
determined by those who administer 	the grievance process. 	If
standing 	is denied, 	PERB can take jurisdiction of 	the dispute.
Finally, 	the 	condition that 	only grievance machinery 	that
culminates 	in binding arbitration 	requires 	deferral 	is 	a
fictitious bootstrap that does not 	exist 	in the 	statutes. 	PERB
has 	no authority to decide 	this 	case 	at 	this 	stage 	of 	the
dispute.
24